Arguments in equality litigation, speech in parliamentary hearings, and campaigns to sway public opinion need a simple, punchy message. We’re just like you. Marriage is about love and we love too. Mariage pour tous. As I have observed elsewhere, the end of litigation and political lobbying may open space for research of a particular character. Research unconnected to an immediate political imperative such as the push for equal marriage may have the luxury of asking more questions than it answers. It may challenge or complicate assumptions about what would best deliver equality to a group. With the media spotlight aimed elsewhere, one may even acknowledge a group’s internal diversity and potential fractures – and ask how solidly it hangs together.
Sue Westwood’s lovely paper on wills by older lesbians and gay men occupies this space. With civil partnership around for more than a decade and same-sex marriage enacted in England and Wales (2013), it’s more comfortable to bracket formal equality’s discourse of sameness and ask about difference. Drawn from the wider socio-legal study of Westwood’s doctoral research, the paper presents findings from interviews with 15 older lesbians and gay men. Westwood reports difference between heterosexuals and her research participants and within the latter group. We see distinctions among participants based on class, marital status and family form, and – uncomfortably for those cleaving to the ideal of a single LGBT “community” – sex. A couple of gay respondents admit candidly that their male-centred friendship networks result from avoiding women.
Westwood uses theory to illuminate her findings. The major organizing device is Ray Pahl and Liz Spencer’s nuanced taxonomy that conjugates friends and family in six types of “personal communities” (e.g. friend-like, friend-enveloped, partner-focussed). The principal theoretical current with which Westwood engages, and against which she carefully pushes back, is the anthropological and sociological discourse of Kath Weston and others respecting gay men and lesbians’ “families of choice.” This discourse reads gay and lesbian kinship as based on friendship and voluntarism, free from obligation. With hindsight and sensitivity to the legal situation at the time, it might be fair to attribute exaggeration of gay and lesbian agency in this discourse to an understandable and urgent instinct for political resistance.
In any event, Westwood complicates this discourse. Only some of the participants’ relationship networks are friendship-based. Moreover, her participants reveal values of duty and obligation in decision-making about their estates. A sense of duty leads some to leave property to members of their legal kinship network from whom they are estranged. Moreover, they may do so while leaving nothing to close gay or lesbian friends who carry out substantial caring work. If wills demarcate “family” and familial obligation, some participants fall back on decidedly conventional definitions of family.
Westwood’s paper also participates in an important effort to integrate wills and inheritance into broader understandings of family practices and regulation. I think here of work by, for example, Angela Campbell, Gillian Douglas, Daniel Monk and Daphna Hacker. If each of us has a most-reviled doctrinal division in the law curriculum and legal knowledge that obstructs research and thought, the segregation of family law from successions may be mine. This area is rich since, at least in principle, testators have such freedom to depart from the statute’s default distribution.
Sue Westwood’s paper is a compelling invitation to look at wills as a source of evidence about kinship – taking complexities and contingencies into account. It reminds us that while some equality issues related to sexual orientation may be “solved,” many cross-cutting inequalities remain – and these may be unsusceptible to legislative reform.